May 18, 2017
from the United States District Court for the Northern
District of Indiana, Hammond Division. No. 2:15CR43-001 -
Philip P. Simon, Judge.
Bauer, Easterbrook, and Sykes, Circuit Judges.
Easterbrook, Circuit Judge.
jury found Mohamed Fadiga guilty of possessing more than 15
unauthorized "access devices"-gift cards that had
been fraudulently reen-coded -and a judge sentenced him to 30
months' imprisonment. See 18 U.S.C. §1029(a)(3). He
contends that police learned about the crime by violating the
Fourth Amendment and that the jury pool was the result of
police officer stopped a car that had an expired license
plate. He asked Mamadu Barry, the driver, for registration
papers, which he did not have; Barry also professed not to
know who owned the car or where he was driving to. So the
officer asked Fadiga, who was in the passenger's seat.
Fadi-ga replied that "a friend" owned the car and
produced, not a registration document, but a rental
agreement. The car's return was past due under that
agreement, which did not authorize either Barry or Fadiga to
drive the car. When Fadiga opened his wallet to extract his
driver's license, the officer saw oodles of plastic cards
in lieu of money. Now suspicious, he asked Barry and Fadiga
for permission to search the car; both consented. The search
turned up a bag full of gift cards, and the officer asked his
dispatcher to send someone with a card reader to determine
whether the cards were legitimate. About half an hour later
the card reader arrived and detected that the cards had been
motion to suppress the evidence rests on the delay between
the officer's call and the card reader's arrival.
Rodriguez v. United States, 135 S.Ct. 1609 (2015),
holds that police violate the Fourth Amendment by extending a
traffic stop to allow time for a drug-detection dog to
arrive, unless reasonable suspicion justifies an
investigation. District Judge Lozano concluded that the
unless clause of Rodriguez has been satisfied: the
police reasonably suspected that the car's occupants
possessed doctored gift cards. 2015 U.S. Dist. Lexis 91006
(N.D. Ind. July 14, 2015). Later the case was transferred to
Judge Simon, who agreed with Judge Lozano and denied a motion
for reconsideration. 2016 U.S. Dist. Lexis 65316 (N.D. Ind.
May 18, 2016).
agree with both district judges. The car's occupants
consented to a search, which turned up far more gift cards
than the most avid shopper carries. That plus other
suspicious details-Barry's professed ignorance of the
car's ownership and destination; Fadiga's assertion
that an unnamed friend owned the car, coupled with a rental
contract that did not permit either Barry or Fadiga to
operate the car - justified detention to learn more.
Rodriguez tells us that reasonable suspicion permits
a delay for the arrival of investigative resources. 135 S.Ct.
at 1615-16. And that's not all. Rodriguez dealt
with a situation in which the car's occupants could drive
away lawfully, if not detained by the police. But Fadiga and
Barry did not appear to have any right to use the car. The
return date on the rental contract had passed, and neither
Fadiga nor Barry had been authorized to drive the car.
Whether or not they waited for a card reader, the police were
entitled to detain Fadiga and Barry until their authority to
use the car had been determined. Extending the traffic stop
therefore did not violate the Constitution.
the argument about discrimination. The venire from which the
jury was to be selected comprised 48 persons, none of them
black. Fadiga asserted that this must have been the result of
racial discrimination. Asked for supporting evidence,
Fadiga's lawyer offered none. The judge ruled that a
person who protests the composition of the pool from which a
jury is drawn must show that some discriminatory practice
produced the racial imbalance. 2016 U.S. Dist. Lexis 71102
(N.D. Ind. June 1, 2016), citing, e.g., United States v.
Phillips, 239 F.3d 829, 842 (7th Cir. 2001) ("[T]he
makeup of any given venire is not significant, provided all
rules for selection have been observed.").
appellate brief tries to supply some of what was missing in
the district court. His lawyer observes that the population
of the two counties (Lake and Porter) from which the jury
pool came is approximately 20% black, and he asks us to infer
that a discriminatory practice must have existed. Zero for 48
from such a population is exceptional, but Fadiga has not
attempted to estimate the probability that it could occur by
chance-nor has he provided data about voter registration or
the age distribution of the counties' population (people
under 18 are ineligible to serve on juries). The plan at the
time of Fadiga's trial drew from lists of registered
voters; since then, the Northern District of Indiana has
amended its plan to include as potential jurors everyone with
government-issued identification such as a driver's
license, plus all resident taxpayers, whether or not
registered to vote.
challenge to the composition of a jury pool to succeed,
counsel must show how the venire was selected. The Jury
Selection and Service Act, 28 U.S.C. §§ 1861-78,
provides a means to do that, and §1867(d) entitles
litigants to hearings before jury selection begins if they
can show what seems to be a substantial departure from
expectations. Litigants who invoke this statute are entitled
to discovery. See §§ 1867(f), 1868. The statute
adds that the "procedures prescribed by this section
shall be the exclusive means by which a person accused of a
Federal crime ... may challenge any jury on the ground that
such jury was not selected in conformity with the provisions
of this title" (§1867(e)).
record does not offer any reason to think that the rules of
the Northern District's former plan were either biased or
bypassed. The plan is race-blind and before its amendment
should have produced venires that in aggregate tracked the
population of registered voters-at least if all groups
respond to jury summonses at the same rate, another question
on which the record is silent. It is possible to imagine
things going wrong, such as a batch of jury summonses being
sent to a single town or precinct that is predominantly
white, but there's no evidence that this, or anything
else, did go wrong. As no one is entitled to racial balance
on any particular jury, see Ho ...